Annual Report: 2004-2005

The Attorney General of Canada and Mel Cappe v. Information Commissioner of Canada, Court file A-223-04

This is an appeal of Madam Justice Dawson’s March 25, 2004, decision in The Attorney General of Canada et al. v. The Information Commissioner of Canada, 2004 FC 431 on the Group E – "Solicitor-Client Application", an application commenced under section 18.1 of the Federal Courts Act. In the Group E - proceeding, Justice Dawson dismissed an application by the Attorney General of Canada and Mel Cappe against the Information Commissioner for: i) a declaration that the Information Commissioner lacks jurisdiction to require the production of certain documents alleged to be the subject of solicitor-client privilege; and ii) an order of certiorari, quashing the Information Commissioner’s order which compelled the production of one document asserted to be subject to solicitor-client privilege.

Note: The case, The Attorney General of Canada et al. v. The Information Commissioner of Canada, 2004 FC 43, has been reported in a number of earlier annual reports to Parliament, most recently in the Information Commissioner’s 2003-04 annual report, at pages 9 –13.

In the course of investigating six complaints concerning the head of the Privy Council Office’s responses to access requests for copies of the former Prime Minister’s daily agendas for the fiscal or calendar years 1994 to June 25, 1999, the Information Commissioner served Mel Cappe, then Clerk of the Privy Council, with a subpoena duces tecum, which required that Mr. Cappe attend to give evidence before the commissioner’s delegate and to bring with him certain records.

In response, Mr. Cappe declined to provide the Office of the Information Commissioner with eleven documents, which Mr. Cappe identified as being responsive to the subpoena duces tecum. Instead, the Information Commissioner was provided with a general description of the 11 documents. The basis upon which the documents were withheld from the Information Commissioner (and only a description was given) was the government’s assertion that the 11 documents were protected by solicitor-client privilege and therefore not subject to the Information Commissioner’s prima facie right of review.

Despite the claim of solicitor-client privilege, the Information Commissioner ordered the production of one of the eleven documents. According to this document’s description, its purpose was to determine how to respond to one of the access requests then being investigated by the Information Commissioner’s office.

In response to the order of production, Mr. Cappe produced the record to the Information Commissioner’s delegate. Meanwhile, however, the government and Mr. Cappe commenced a judicial review proceeding against the Information Commissioner wherein they sought: a) a declaration from the Federal Court that all eleven documents identified as responsive to the subpoena duces tecum were subject to solicitor-client privilege and that the Information Commissioner, as a result, lacked the jurisdiction to compel these documents’ production; and b) an order of certiorari which would quash, after the fact, the Information Commissioner’s order to compel the one document which he had ordered to be produced.

This application inter alia was determined by the Federal Court on March 25, 2004. Here, Madam Justice Dawson held that subsection 36(2) of the ATIA provides the Information Commissioner with a prima facie right of access to documents that are protected by solicitor-client privilege. In doing so, she rejected the Crown’s argument for a restrictive interpretation which would have required the Information Commissioner to establish that the production of the document was absolutely necessary for the Information Commissioner’s investigations prior to his ordering that it be produced. Such a restrictive interpretation, Justice Dawson concluded, was inconsistent with Parliament’s clear language, set out in the Act. In support of her ruling, Justice Dawson pointed inter alia to: the scheme of the Act, in general, and its overarching mandate of independent review; the clear words of Parliament as set out in subsection 36(2) of the Act. In addition, Justice Dawson noted that the production of privileged material to the Information Commissioner does not compromise privilege and that the issue had already been addressed by the Federal Court of Appeal in the Ethyl case, Canada (Information Commissioner) v. Canada (Minister of Environment) (2000), 187 D.L.R. (4th) 127 (F.C.A), (Court of Appeal file A-761-99), leave to appeal to S.C.C. dismissed, (2000) S.C.C. file 27956.

In this appeal, the Attorney General and Mel Cappe challenge Justice Dawson’s decision contending inter alia that the Information Commissioner is required to establish absolute necessity prior to compelling the production of records during the course of his in camera investigation which are asserted to be the subject of solicitor client-privilege.

Whether the Application Judge correctly interpreted subsection 36(2) of the Act, given:

1. the clear wording of subsection 36(2) of the Act;

2. the public policy goals sought to be achieved by Parliament in the Act and the role of the Information Commissioner; and

3. that the relevancy of the document in issue to the investigation being carried out by the Information Commissioner is a matter for determination by the Information Commissioner.

A date for the hearing of the appeal has been set for May 4, 2005. The outcome of these judicial proceedings will be reported in next year’s annual report.

Francis Mazhero v. The Information Commissioner of Canada, T-313-04, Federal Court

On March 12, 2004, the applicant Mazhero filed a notice of application under section 18.1 of the Federal Courts Act in which he sought an order in the nature of certiorari, mandamus and declaratory relief against the Information Commissioner of Canada. The sole relief claimed was against the Information Commissioner. The application arose from the applicant’s access request under the Privacy Act, and his subsequent complaint to the Privacy Commissioner. Accordingly, the applicant improperly initiated this application for review against the Information Commissioner. Given, inter alia, that the sole relief claimed by the applicant was against the Information Commissioner and that reviews under section 18.1 are not applicable to purely administrative decisions made by the commissioner within the lawful exercise of his discretion under the Access to Information Act, the commissioner brought a motion to strike the application in its entirety on the basis that it was bereft of any chance of success or to remove the Information Commissioner as a party.

The Information Commissioner subsequently brought an amended motion to strike the application for judicial review in accordance with the order of Mr. Justice Rouleau, dated June 17, 2004. Prothonotary Milczynski has reserved judgment after hearing the motion on December 14, 2004.

Matthew Yeager v. The Information Commissioner of Canada, T-1644-04, Federal Court

On September 9, 2004, the applicant Yeager filed a notice of application under section 18.1 of the Federal Courts Act in which he sought relief against the Information Commissioner of Canada. The application arose from two access requests under the Access to Information Act, both dated November 29, 2002. One request was made to the National Parole Board ("NPB"). The second was directed to Correctional Service Canada ("CSC"). On July 22, 2004, and August 25, 2004, the Information Commissioner reported to the applicant the results of his investigations, namely, that in the commissioner’s view, the applicant’s complaints were not well-founded.

It was the Information Commissioner’s position that the application is without merit and ought to be summarily dismissed for the following reasons: 1) a comprehensive alternative scheme has been provided for by Parliament for judicial review of the government institution’s refusal to disclose records requested under the Act; 2) the commissioner’s recommendation is not amenable to judicial review; and 3) the remedies sought are unavailable against the Information Commissioner. No judgment has yet been rendered by the court in this matter.